LYNN NEARY, host:
Today, dozens of men on death row whose executions had been put on hold are facing imminent execution. The U.S. Supreme Court yesterday upheld the three-drug protocol for lethal injection used in all 36 death penalty states.
NPR's legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: The first drug on the lethal injection protocol is to sedate, the second to paralyze, and the third to kill. Critics contend that it poses an unnecessary risk of pain and suffering that could easily be avoided with a simple overdose of a single barbiturate or by eliminating the paralytic, so that if the inmate is suffering great pain he can communicate that fact.
But yesterday the U.S. Supreme Court said the critics had not been able to show there was a substantial risk of pain and suffering posed by the procedures used in Kentucky. The vote was 7-2, but the justices were so divided in their reasoning that no more than three justices signed onto any one opinion.
The practical effect of the ruling is twofold. First, dozens of death row inmates whose executions had been put on hold pending the outcome of the Kentucky case will now face imminent execution. Second, it will be harder to challenge procedures in other states.
As J. Michael Brown, Secretary of Justice and Public Safety in Kentucky, put it…
Mr. J. MICHAEL BROWN (Secretary of Justice and Public Safety, Kentucky): That would seem to suggest to other states that you're certainly not going to run afoul of the Constitution if you follow the procedures that we have.
TOTENBERG: Nonetheless, death penalty opponents say that Kentucky has had only one execution, while other states have had 50, 100 or more. And that the track record in some of those states has produced evidence of untrained personnel carrying out the executions, death chambers not designed for the purpose, and even records of abuse. For example, in Missouri evidence showing that the doctor who administered the cocktail for years used as little as half the sedation necessary, meaning that the condemned very likely suffered great pain but because of the paralytic could not communicate that.
Death penalty lawyer Donald Verrilli.
Mr. DONALD VERRILLI (Lawyer): If one looks at the records established there, what one finds is that the problem is not so much with the written protocols, which - at least on their face - seem reasonable, but on the fact that the states don't seem to pay any attention to the written protocols when they actually carry out the executions. And they carry out the executions in a haphazard manner. And with a record like that, it seems to me you're going to have a far different case than the case you had in Kentucky.
TOTENBERG: Professor Elisabeth Semel directs the California Death Penalty Clinic at UC-Berkeley.
Professor ELISABETH SEMEL (Director, California Death Penalty Clinic, University of California-Berkeley): I view it as opening doors. The key is going to be convincing courts to allow discovery, which shows in fact a substantial risk of serious harm does exist.
TOTENBERG: That sentiment is echoed by longtime death penalty litigator George Kendall.
Mr. GEORGE KENDALL (Attorney): The protocol in and of itself does not guarantee a constitutional execution. It's really how that protocol is administered and carried out. And I think that - I don't think that this decision is going to be read to slam shut the door.
TOTENBERG: But not all death penalty opponents are so optimistic. Columbia Law School Professor Michael Dorf thinks that in the long run yesterday's Supreme Court decision will close the doors to those challenging lethal injection.
Professor MICHAEL DORF (Columbia Law School): This court as currently configured is not about to strike down a state's method of execution if it looks more or less like Kentucky's.
Nina Totenberg, NPR News, Washington.
NEARY: You can read the Supreme Court's decision and why some people oppose lethal injection as inhumane by going to npr.org.
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